A Probe Too Far

The anti-choice strategy of using piecemeal abortion regulations that, taken together, substantially restrict access has been all too successful in many states. One reason for this is that, whatever their lack of policy merits, regulations like waiting periods and parental involvement requirements tend to be popular. Focusing on whether abortion should be legal is favorable terrain for supporters of reproductive rights, but focusing on specific regulations regrettably tends to favor opponents of reproductive freedom.

One interesting thing about Virginia's appalling mandatory transvaginal ultrasound law is that unlike many of the schemes cooked up by anti-choice forces, it is proving to be highly unpopular. The Republican governor Bob McDonnell is still overwhelmingly likely to sign the bill, but has suddenly become notably restrained about defending it. What explains the public opinion victory for the bill's opponents?

I would guess that two factors are relevant. First, there's the fact that it represents a humiliating, medically unnecessary violation of bodily autonomy. Many abortion moderates who are willing to tolerate procedural or bureaucratic impediments to obtaining and abortion are likely to draw the line when it comes to a law effectively requiring women to be sexually assaulted before they can undergo a common medical procedure. And, second, most abortion regulations tend to have a disparate impact that most strongly affects the women with the least political power. To an affluent woman with a job with flexible hours in a major northern urban center, a mandatory waiting period may just be an unnecessary annoyance. But to a single mother in rural area in the South, a waiting period represents a very substantial barrier to her ability to obtain an abortion. While this logically should make such regulations even more indefensible, practically, this tends to limit politically effective opposition. A requirement to get a transvaginal ultrasound, conversely, applies across the board. When the broad applicability of the bill is combined with such a visceral violation of a woman's dignity, the strong opposition becomes easy to explain.

Unfortunately, the public opposition is unlikely to stop the bill from passing in Virginia. But it may stop similar bills from being passed in other states, and the courts may well also see such regulations as particularly egregious. Logically, the mandatory ultrasounds should be the very definition of an "undue burden," and hopefully this overreach will compel the federal courts to stop watering down the constitutional standard it uses to protect reproductive rights.